This opinion
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addresses the question whether a hearing on a defendant's motion to suppress as evidence the tapes of intercepted oral or wire communications and on a corresponding Government motion to authenticate those recordings for use at trial must, at the request of the defendant, be held in camera or, conversely, whether the public and the news media are entitled to access to that hearing and/or to the transcript and record thereof. Principally at issue are the tapes of certain conversations between defendant, Henry J. Cianfrani, and one Vera Domenico. These conversations were recorded by special agents of the Federal Bureau of Investigation, allegedly with the consent of Miss Domenico. One conversation was recorded by virtue of Miss Domenico's premises being "wired"; the balance were telephone conversations conducted over "tapped" telephones. If these recordings were in fact made with Miss Domenico's consent, they would appear to be within the ambit of 18 U.S.C. § 2511(2)(c), which, as one of the exceptions from the statutory proscription against the interception of wire and oral communications, see generally 18 U.S.C. §§ 2510-2520, authorizes interception of a communication when one of the parties to the communication gives prior consent to its interception.

The defendant has contended that Miss Domenico did not give a valid consent to the interception and that the tapes and transcripts thereof must therefore be suppressed as evidence obtained in violation of law. He has thus moved to suppress the evidence under 18 U.S.C. § 2518(10).

The Government, on the other hand, has moved, pursuant to the procedure set forth in United States v. Starks, 515 F.2d 112, 121 n.11 (3d Cir. 1975), for the authentication of the tapes so that they may be introduced into evidence at trial.
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The hearing the openness of which is at issue is also therefore intended as a Starks hearing.

The parties to the controversy now before us are the defendant, who has asked that the hearing be held in camera, and an impressive array of members of the Fourth Estate, who have asked that it be open. This array consists of Philadelphia Newspapers, Inc. (The Philadelphia Inquirer and the Philadelphia Daily News), the Philadelphia Bulletin Company, the Associated Press, the Columbia Broadcasting System, and the Westinghouse Broadcasting Company. Recognizing the First Amendment interest of the news media in this issue, we have granted the media leave to intervene on the media access question. The United States Attorney has taken no position in the matter, leaving it "to the discretion of the Court."

Nebraska Press involved the murder of six persons in a small community in Nebraska. To prevent prejudicial pretrial publicity, the district court of Lincoln County, Nebraska issued an order that, as modified by the Nebraska Supreme Court in original mandamus proceedings instituted by the news media, restrained the media from publishing or broadcasting accounts of confessions or admissions made by the accused or of facts strongly implicating him. This order was to remain in effect only until the jury was impaneled and sequestered. On certiorari, the United States Supreme Court, in an opinion by Chief Justice Burger that expressed the views of five members of the Court, reversed.

The Supreme Court held in Nebraska Press that the challenged order violated the First Amendment's guarantee of free press insofar as the record did not demonstrate that alternatives to a prior restraint on the news media would not sufficiently have mitigated the adverse effects of pretrial publicity so as to make a prior restraint unnecessary. Further, the Court said that it was unable to conclude that the record showed that the restraining order would even have served its intended purpose. The Court also held that the order prohibiting reports or commentary on judicial proceedings held in public was clearly invalid and that, to the extent to which the order prohibited publication based on information gained from other sources, the heavy burden imposed as a condition of validly securing a prior restraint was not met.

We observe that in Nebraska Press the pretrial hearings conducted by the Court were open and that the court's challenged order prohibited reporting what the media had already heard. Nebraska Press thus does not squarely address the precise question now before us, which is that of media access to the proceedings and not that of prior restraint per se. The narrow question whether to exclude the press from a Title III suppression or Starks hearing has perforce arisen before in this and other federal courthouses throughout the land and has been dealt with by federal judges wherever it has arisen on an ad hoc -- though doubtless a principled -- basis. We are, however, unable to find any reported opinion discussing what we find to be the enormously complex and sophisticated issues involved. The parties themselves have cited us to none.

The media have argued in this proceeding that this case is controlled by Nebraska Press Ass'n v. Stuart, supra. We note at the outset, however, that the principal issues in this case are not, in our judgment, controlled by Nebraska Press. We note particularly footnote 8 of the opinion of the Court and footnote 11 of the concurring opinion of Mr. Justice Brennan, which was joined in by Mr. Justice Stewart and Mr. Justice Marshall. In footnote 8, the Chief Justice stated for the Court:

Closing of pretrial proceedings with the consent of the defendant when required is also recommended in guidelines that have emerged from various studies. At oral argument petitioners' counsel asserted that judicially imposed restraint on lawyers and others would be subject to challenge as interfering with press rights to news sources. We are not now confronted with such issues.

427 U.S. at 564 n.8 (citations omitted). And, at footnote 11 of his concurrence Justice Brennan stated: "The constitutionality of closing pretrial proceedings under specific conditions is not before us, and is a question on which I would intimate no views." Id. at 584 n.11. So, it is clear to us that this case is not directly and necessarily controlled, at least in its right of access aspects, by Nebraska Press.

The principal case that most nearly addresses the problem before us is United States v. Gurney, 558 F.2d 1202 (5th Cir. 1977). In Gurney, newspapers sought review of the orders of the United States District Court for the Middle District of Florida denying their request to examine certain trial documents in a criminal proceeding. The Court of Appeals for the Fifth Circuit held that the members of the media are free to report what occurs in open court, but do not have any First Amendment right of access to those matters not available to the public generally. The Court held that refusal to direct that names and addresses of jurors be publicly released was not an abuse of discretion; that refusal to grant the press access to bench conferences with counsel was not an abuse of discretion; that refusal to grant the press access to exhibits identified but not yet received into evidence was not an abuse of discretion; and that the press had no constitutional right of access to written communications between the judge and the jury. In its discussion, the Gurney court noted that the question of the media's First Amendment newsgathering rights in the face of judicial or Government restrictions has been the subject of much discussion but nevertheless remains largely unsettled. 558 F.2d at 1207. In the wake of Nebraska Press, it also noted that, as a general rule, orders proscribing publication of matters transpiring in open court are constitutionally infirm absent some compelling justification. But, continued the court, the trial judge in Gurney did not resort to the use of prior restraints; the district judge merely refused to allow the appellants to inspect documents not yet a matter of public record. Appellants remained free to obtain whatever information they desired from any source except the district court and its supporting personnel. Id. at 1211.

We concur with this presumption and with the observations to this effect made by counsel at argument. This is especially so, it has been argued, where the subject matter of the litigation is a State Senator and the charges involved implicate his stewardship and the public trust. See Gannett Co. v. DePasquale, No. 549, 43 N.Y.2d 370, 372 N.E.2d 544, 401 N.Y.S.2d 756 (N.Y. Ct. App. 1977) 435 U. S. 1006, 98 S. Ct. 1875, 56 L. Ed. 2d 387 (1978). Moreover, although the press did not so argue, Justice Brennan noted in his concurring opinion in Nebraska Press that the press has a particular First Amendment interest in suppression proceedings in view of the fact that at issue in such proceedings are the practices of law enforcement officers in conducting investigations. 427 U.S. at 606-07. We consider such concerns to be especially compelling when the focus is on law-enforcement use of electronic surveillance. See generally Part V, infra.

As with most things, however, we cannot decide hard cases by simplistic rules. Indeed, a strict application of the general rule which we have suggested would unleash a Pandora's Box of problems. We consider, for example, pretrial and settlement conferences. The presence of the public or the media at such conferences would be destructive of orderly procedure and, more importantly, would tend to chill the kind of confidential communication and discussion that is essential to the court's important role in the mediation of disputes.

Secondly, we consider the question of pretrial discovery, on which there is already authority in Times Newspapers Ltd. v. McDonnell Douglas Corp., 387 F. Supp. 189 (C.D.Cal. 1974). The court there held that the First Amendment does not grant newspaper reporters access to depositions. The court noted that depositions are not a judicial trial nor a part of a trial but a proceeding preliminary to trial; neither the public nor representatives of the press have the right to be present at such proceedings.

Bench conferences comprise another aspect of the judicial process that has been addressed by the courts. In Gurney, the Court noted that the press does not have access to such conferences. 558 F.2d at 1210.

Trade secret cases, in which the records of both trial and pretrial proceedings contain evidence of trade secrets, are another important consideration. Consider a case that might occur in the United States District Court for the Northern District of Georgia in Atlanta when a federal judge for some reason ordered the Coca-Cola Company to produce from its safe in the bank vault the formula for Coca-Cola. Might it be contended that because it was produced before a federal trial judge, who held an in camera hearing to determine its admissibility and then ruled adversely to admissibility, that the public and the media was entitled to the Coca-Cola recipe? The question is rhetorical and answers itself. It demonstrates that there are privileges and confidentiality or privacy rights to which First Amendment considerations must yield.

Closely related is the question of procedures for determination of various kinds of privileges, including those recognized either at common law or by statute. Frequently, courts are called upon to rule whether the attorney-client privilege, the husband-wife privilege, the physician-patient privilege, or the like is validly asserted. Traditionally, lest the baby be thrown out with the bath water, courts have held such conferences in camera. Were courts to proceed otherwise, public airing of the documents that the court had to scrutinize in order to evaluate a claim of privilege would emasculate the purpose of the privilege claim altogether.

There are thus sound logical bases for some limitations on First Amendment access. Indeed, conceding many of these, media counsel suggested that the appropriate test for media access is whether the court is conducting a formal adjudicative proceeding. The specific question before us, however, is whether a Title III suppression hearing is within the category of those proceedings to which the press has a First Amendment right of access.

The defendant has argued that because the purpose of the suppression and Starks hearings is to determine whether the tapes are presumptively admissible, the principle based on privilege determination is applicable here. He argues that to permit public access would, in the event the tapes are held at the hearing to be inadmissible, defeat the entire purposes of the suppression motion because the press and the public, including potential jurors, would have pre-trial access to inadmissible evidence.

The question of media access to pretrial proceedings has been addressed by the American Bar Association Project on Minimum Standards for Criminal Justice in its Standards Relating to Fair Trial and Free Press. In the presently extant Rule 3.1, entitled "Pretrial Hearings," the standard reads in pertinent part:

In any pretrial hearing in a criminal case, including a motion to suppress evidence, the defendant may move that all or part of the hearing be held in chambers or otherwise closed to the public on the ground that dissemination of evidence or argument adduced at the hearing may disclose matters that will be inadmissible in evidence at the trial and is therefore likely to interfere with his right to a fair trial by an impartial jury. The motion shall be granted unless the presiding officer determines that there is no substantial likelihood of such interference.

We turn now to the case law in the suppression area to see if it aids in our determination whether suppression hearings, and particularly Title III suppression hearings, are an exception to the general presumption-of-access rule. In United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3d Cir. 1969), the Third Circuit held that a Jackson v. Denno hearing, after jury sequestration, was part of the trial itself to which the defendant's right to a public trial attached. It therefore held that it was error to exclude, over defendant's objection, the public from the suppression hearing. We draw little sustenance from Bennett, however, because the hearing took place after trial had begun and the jury was sequestered, because it was the defendant who objected to closing the hearing, and because what were at issue were Sixth Amendment rights, not media rights under the First Amendment. In other words, while concededly there is general language in Bennett that might be read to lend some comfort to the media intervenors now before us, it does not address the particular questions involved here.

There are also two FAA secret hijacker profile cases that are of interest. In United States v. Clark, 475 F.2d 240 (2d Cir. 1973), exclusion of the defendant and the public from the entire hearing to suppress evidence seized at the airport on the ground that the exclusion was necessary to protect the secret FAA hijacker profile was deemed to be a violation of the Sixth Amendment right to a public trial. In contrast, in United States v. Bell, 464 F.2d 667 (2d Cir. 1972), the court held that exclusion of the defendant and the public from limited portions of the suppression hearing, during which description of the hijacker profile was given, was permissible. See also United States v. Lopez, 328 F. Supp. 1077, 1087 (E.D.N.Y. 1971). (FAA hijacker profile case in which profile information would be disclosed during suppression hearing: "Despite the important rights conferred on both the defendant and the public by the Constitution, exclusion of the public, or portions of it, for limited purposes and for short periods is sometimes justified in the public interest or in the interest of the defendant."). We observe that again in these cases the operative constitutional provision was the Sixth -- not the First -- Amendment. Nevertheless, in the pretrial context these courts in the Second Circuit justified closing the suppression hearings by a strong public interest in nondisclosure -- a sort of public policy privilege.

In United States v. De Diego, 167 U.S. App. D.C. 252, 511 F.2d 818 (1975), the court dealt with a trial court's failure to hold a pretrial evidentiary hearing to determine if certain evidence was the fruit of testimony given under a grant of immunity. Rather than holding the hearing, the trial court had dismissed the indictment against the defendant in part because it felt that holding an evidentiary hearing, necessary to determining the admissibility of the evidence, would lead to prejudicial pretrial publicity. The circuit court reversed, stating:

The trial judge also stated that a pretrial hearing 'would at best generate additional pretrial publicity of a particularly unfortunate kind.' But the hearing could have been held in camera to remove the threat of pretrial publicity. Indeed, such a pretrial taint hearing was held in camera by the District Court here in United States v. Mitchell, et al.. . . apparently without generating additional pretrial publicity.

Regrettably, no meaningful standards emerge from these cases to guide us. Nor do we find guidance in In re Washington Post Co., No. 76-1695 (4th Cir. July 19, 1976), in which the Fourth Circuit dubbed as a "prior restraint" the action of the district court in closing to public and media access all papers filed in the case after a particular date. That case provides little precedential value in view of the overbroad district court order under review, the absence of any reference to a suppression hearing, and, indeed, the lack of any statement of the reasoning of the court of appeals as to what portions of the record or portions of the matter its one-paragraph order addressed.

427 U.S. at 569. Thus, the order of the Nebraska Supreme Court was held invalid as running afoul of the First Amendment. Id. at 570.

We think it appropriate to reiterate at this point that Nebraska Press was a prior restraint case in which the material that the judge sought to suppress had already been disclosed to the media in open court. That is not this case; this is an access case, not a prior restraint case. However, insofar as a First Amendment right of access might be presumed under the facts of this case, the standards of Nebraska Press would seem to be applicable, for First Amendment considerations would then be implicated in this case no less than they were in Nebraska Press.

Assuming, then, that for First Amendment purposes we were to equate in this case denial of access with prior restraint, we think that perhaps the best explication of the teaching of Nebraska Press for this case is contained in the newly recommended American Bar Association "Criminal Justice Standards Relating to Fair Trial and Free Press" which, at 3.1, read:

(1) There is a substantial likelihood that information prejudicial to the accused's right to a fair trial would reach potential jurors; and

(2) The prejudicial effect of such information on potential jurors cannot be avoided by alternative means. In assessing whether alternative means are available, the court must consider whether the rights of the accused guaranteed by the fifth and sixth amendments can adequately be preserved through: (a) continuance; (b) severance; (c) change of venue; (d) change of venire; (e) voir dire; (f) additional peremptory challenges; (g) sequestration of the jury; (h) admonition to the jury; and (i) other less restrictive procedures.

Turning to the record before us, it is barren of anything but our personal knowledge of the pretrial publicity. There have been no offered clippings, surveys, or anything of the like. Our personal knowledge from reading the Philadelphia dailies, occasionally listening to the radio, and very sporadically viewing television is that there has been extremely widespread publicity of matters affecting Senator Cianfrani. We note too that Newsweek magazine had a full-page story on one aspect of Senator Cianfrani's problems. Indeed, media counsel have conceded that there has been extremely widespread publicity, which augurs for the future that there will continue to be.
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While we would have no doubt that in this case Senator Cianfrani could meet the extant (pre- Nebraska Press) ABA Standards, it is clear to us that he cannot meet the proposed new Standards. We say, particularly in view of the precise holding of Nebraska Press -- based upon a fuller record than that made here -- that the court could not conclude that in the absence of a prior restraint there is a clear and present danger to a fair trial. There are numerous distinctions between this case and Nebraska Press. Rather than in a small county, this case arises in a judicial district of 10 counties, some of which, including the counties of Northampton, Schuylkill, Berks, and Lancaster, are far removed from the Philadelphia metropolitan center. Publicity about Senator Cianfrani's problems is likely to be far less there than in Philadelphia, the Senator's home town. Indeed, there are portions of Schuylkill County, for example, where radio and television transmission is extremely poor, at least without a cable. Additionally, there is available to us what we would dub as a Sirica-like voir dire; i.e., a voir dire reminiscent of that conducted by Judge Sirica in the case of the Watergate defendants -- an extremely thorough and searching voir dire designed to root out any potential bias or prejudice among jurors. See United States v. Haldeman, 181 U.S. App. D.C. 254, 559 F.2d 31, 64-70 (1976). There is available to us the avenue of giving Senator Cianfrani additional peremptory challenges to jurors in the event that it should appear from the voir dire that there is potential prejudice. There are also, of course, such measures available as admonition to the jury (which we find that jurors take seriously), the right of sequestration, et alia.

We cannot on this record find that failure to close the suppression/ Starks proceeding or to seal the record of it would constitute a clear and present danger to a fair trial. Although we would concede that there is substantial likelihood that information prejudicial to the accused's right to a fair trial would, if the hearings are held open, be likely to reach potential jurors, we cannot conclude that the prejudicial effect cannot be avoided by the alternative means set forth in the proposed ABA Standards. Therefore, we cannot conclude that this hearing should be closed to the media on what have been described as fair trial/free press grounds.

The tremendous scientific and technological developments that have taken place in the last century have made possible today the widespread use and abuse of electronic surveillance techniques. As a result of these developments, privacy of communication is seriously jeopardized by these techniques of surveillance. Commercial and employer-labor espionage is becoming widespread. It is becoming increasingly difficult to conduct business meetings in private. Trade secrets are betrayed. Labor and management plans are revealed. No longer is it possible, in short, for each man to retreat into his home and be left alone. Every spoken word relating to each man's personal, marital, religious, political, or commercial concerns can be intercepted by an unseen auditor and turned against the speaker to the auditor's advantage.

The Report of the President's Commission on Law Enforcement and Administration of Justice, 'The Challenge of Crime in a Free Society' (1967), concluded that 'the present status of the law (relating to wiretapping and electronic surveillance) is intolerable.' 'It serves,' the Report observed, 'neither the interests of privacy nor of law enforcement.'

S.Rep. No. 1097, 90th Cong. 2d Sess., reprinted in [1971] U.S. Code Cong. & Ad. News 2112, 2154. The Senate report goes on to cite the judicial history, including Olmstead v. United States, 277 U.S. 438, 72 L. Ed. 944, 48 S. Ct. 564 (1928), the famous opinion in which Justice Holmes dissented and referred to wiretapping as "dirty business," on through Berger v. New York, 388 U.S. 41, 18 L. Ed. 2d 1040, 87 S. Ct. 1873 (1967) and Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), cases that ultimately spawned Title III. As does the language of the Senate Report itself, the prominent citation of these cases heralds the privacy interest as a bellwether of the Title III legislation, for these cases trenchantly articulate the importance of privacy in our polity.

Tracing and emphasizing these privacy interests which are at the heart of Title III, Mr. Justice Brennan, in Gelbard, quoted the Senate Report:

Title III has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized. To assure the privacy of oral and wire communications, title III prohibits all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officers . . ..

It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

The validity of electronic surveillance by consent, despite Katz and Berger, was affirmed by the Supreme Court in United States v. White, 401 U.S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122 (1971). White, a decision in which six opinions were filed, upheld the constitutional validity of evidence obtained when one party to a conversation was equipped with a radio transmitter that enabled government agents to overhear the conversation. The plurality reached its decision making only a passing and ambiguous reference to Title III. 401 U.S. at 754. The dissent of Justice Harlan, however, expressly noted that consensual interceptions are exceptions to "the general prohibitions against surveillance without prior judicial authorization." Id. at 792. Thus, it could be argued that Justice Harlan's dissent underscores the divergence between the nature of consensual interceptions and the thrust of Title III. See also Pulaski, Authorizing Wiretap Applications Under Title III: Another Dissent to Giordano and Chavez, 123 U.Pa.L.Rev. 750, 750 n.1 (1975) ("There are several exceptions to Title III's prohibition of unauthorized electronic interceptions. The statute does not apply, for example, if a party to the wire or oral communication consents to its interception.") (emphasis added); McCormick, Evidence 401 n.8 (2d Ed. 1972) ("Specific exception [from Title III] is made for a 'person acting under color of law' to intercept a communication 'where one such person is party to the communication or one of the parties to the communication has given prior consent to such interception.'").

On the other hand, what Justice Harlan and the commentators say could with equal logic be read to signify only that when an interception is gained by consent, the judicial authorization requirements of § 2516 do not apply; that is, that consensual interceptions are exceptions to Title III insofar as acquisition is concerned, but not as to disclosure. In any case, it is neither dispositive nor helpful to analysis of the question to point out that under existing law Congress was not required to include consensual monitoring under the protective rubric of Title III in order to provide for the legality of such monitoring. For, even if Congress was not required by the state of Fourth Amendment law to raise threshold protections for private conversations intercepted consensually, it nevertheless might have chosen to do so. "Indeed, Congress has ample power to provide protection for the privacy of telephonic communications more comprehensive than that provided by the Fourth and Fourteenth Amendments." Flaherty v. Arkansas, 415 U.S. 995, 997 n.3, 39 L. Ed. 2d 893, 94 S. Ct. 1599 (1974) (Douglas, J., joined by Brennan and Marshall, JJ., dissenting to denial of certiorari).

Turning again to the legislative history of Title III, we note that the Senate Report states:

Paragraphs (2)(c) [codified at 18 U.S.C. § 2511 (2)(c)] provides that it shall not be unlawful for a party to any wire or oral communication or a person given prior authority by a party to a communication to intercept such communication. It largely reflects existing law.

It is our opinion that the policy and privacy interests are the same whether communications are monitored with the consent of one of the parties or by judicial authorization.
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We do not perceive that privacy interests of one party to a conversation are substantially lessened merely because the other party to the conversation, who consents to the electronic surveillance, could in any event testify to those very same conversations in open court. This is so because the privacy invasions resulting from interception of consensually monitored conversations may in fact exceed those resulting from judicially authorized interceptions. Consensual interceptions are not limited in time or space. Indeed, when judicially authorized interceptions are involved, the monitoring agents are statutorily required to minimize interceptions whereas when persons, premises, or telephones are "wired" by consent, no such minimization is always feasible, much less required. Further, sophisticated modern electronic techniques have made possible verbatim recordation of lengthy conversations, whereas no mortal could recall such conversations in replete detail and testify to them accordingly. As Senator Hart stated:

the risk created by electronic recording is of an entirely different order from the risk of repetition involved in normal conversations, and . . . consensual electronic surveillance presents grave dangers to free and open expression in our society. None of us is so circumspect in our speech that we can countenance the later use of our most private utterances, played with the shattering impact of a broadcast in our own words.

In our case, of course, we do not go so far as the Wisconsin court in holding consensually intercepted conversations inadmissible unless the interceptions also complied with the judicial authorization provisions of Title III. The Third Circuit has already decided that question in favor of admissibility. See United States v. Santillo, 507 F.2d 629 (3d Cir.) cert. denied sub nom. Buchert v. United States, 421 U.S. 968, 44 L. Ed. 2d 457, 95 S. Ct. 1960 (1975); United States v. Osser, 483 F.2d 737 (3d Cir. 1973). In any event, since the privilege we have articulated is grounded in the background, structure, and language of the statute rather than in some disembodied penumbral privacy right, we see no reason to extend the privilege beyond the point contemplated by the statute itself. Indeed, § 2517(3) provides:

Any person who has received, by any means authorized by this chapter, any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding . . ..

This language, authorizing disclosure in any case where the interception was in accordance with the provisions of the chapter, should be read to include interceptions by consent since such interceptions are in accordance with § 2511(2)(c), one of the provisions of the chapter.

From this perspective, consent is one way in which electronic surveillance is legitimated; judicial authorization is another. The distinction goes more to modes of statutory compliance than to levels of privilege. Analogously, a conventional search and seizure may be legitimated either by warrant or consent. But if what were seized were trade secrets, those secrets would not lose their privileged character merely because the seizure was made by consent. To be sure, if a person consents to having his conversation monitored and then wishes to disclose the conversation, he may do so. Indeed, he may do so whether or not he initially consents to government agents monitoring the conversation. Such voluntary disclosure by a party to the conversation, however, is far different from the government, through validation/suppression hearings, being the vehicle for that disclosure. The Title III statutory privilege is less extensive than the trade secrets privilege, for when obtained in compliance with Title III, monitored conversations lose their privilege at trial. 18 U.S.C. § 2517(3). However, such abrogation of the privilege requires compliance with Title III in the first instance.

In sum, we are satisfied that consensual interceptions of communications are within the structure of Title III such that the disclosure provision of the statute is applicable thereto.

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